Court Revives Suit by Nurse in Disputed Firing : Appellate Decision Has Broad Implications for Rights of Discharged Workers

In a decision with broad implications for a worker’s right to sue over being fired, a state appellate court in Santa Ana ruled Thursday that a nurse may pursue her claim that she was discharged for refusing to work an understaffed and unsafe hospital shift.

It was the second time in less than two months that a decision written by Justice John K. Trotter of the 4th District Court of Appeal clarified and expanded the rights of non-union, non-public employees, who make up 80% of the labor force in California.

Therapist Gail Dabbs, 50, claimed in her lawsuit that patient care would have been jeopardized had she accepted a night-shift assignment at San Clemente General Hospital on April 29, 1983.

Normally three certified respiratory therapists worked the shift, Dabbs said, but that evening she was asked to work alone and to train a new employee.

She told her supervisor that she needed help, Dabbs said, and he replied that he could not find anyone and she would have to work the shift alone.

“I felt I was put in a situation I could not honestly say I could handle,” said Dabbs, 50, of Laguna Beach. “I asked for help, and when it wasn’t forthcoming, I just couldn’t accept the situation.”

Dabbs refused to work the shift and was terminated. She filed a lawsuit in Orange County Superior Court, claiming that she was fired unfairly for protesting unsafe conditions.

Thursday’s decision means Dabbs will have a chance to convince a jury that she was treated unfairly. Her lawsuit is against Cardiopulmonary Management Services, a firm that provided respiratory care under contract with the hospital, which is not a defendant in the lawsuit. Representatives of the firm could not be reached for comment.

In past cases, courts have ruled that an employee fired for refusing to engage in illegal conduct has a right to sue. More than once, the state Supreme Court has held that the state’s “public policy” bans termination of workers who refuse to commit crimes or who insist on exercising rights given by the Legislature, such as voting or serving on juries.

Defense lawyers argued that Dabbs had not been forced to violate “public policy” by working the shift because there is no state statute identifying the policy interest involved in the case. Only the Legislature can determine what “public policy” is, they argued.

Joined by Justice Thomas F. Crosby Jr., Trotter rejected the “suggestion that the Legislature is the only source of public policy determinations.”

Trotter, writing for the majority in a 2-1 decision, recognized that the only previous appellate court ruling on the question found judges powerless to decide public policy without statutory support. He rejected that position.

“We find support for our decision in general societal concerns for qualified patient care,” Trotter wrote.

“This policy militates against allowing an employer to discriminate against or discharge an employee for voicing dissatisfaction with procedures he or she reasonably believes might endanger the health, safety and welfare of the patients for which the employee is responsible.”

Last month, in an opinion written by Trotter, the Santa Ana appellate court ordered a jury trial for a worker who claimed that he had been suspended for reporting illegal activity by his employer. It was the first time a California appellate court had extended such protection to workers who had been disciplined short of being fired.

“We’re not asking for judicial activism here,” said Dabbs’ lawyer, William M. Crosby. “We’re just asking courts to recognize that in some cases the Legislature may have failed to act.”

Crosby, a noted workers’ lawyer in the wrongful-termination field, hailed the court’s ruling as providing a potential remedy for an employee who was treated unfairly.

Sonenshine Dissent

“There are unjust dismissals where good people are hurt financially and have their reputations tarnished by supervisors who have made bad decisions,” Crosby said.

Justice Sheila Prell Sonenshine agreed with Trotter’s decision on public policy but disagreed with its application in Dabbs’ case. Sonenshine suggested that employees who merely protest should be distinguished from those who refuse to work, as Dabbs did.

Sonenshine said in her dissent that employees who refuse to work must prove that they were ordered to violate state law. Those terminated for merely protesting working conditions that violate public policy need not prove a violation of state law, Sonenshine wrote.

In an interview, Dabbs said she refused to work only after her request for additional help went unanswered. She said she faced a choice between saving her job or “putting people in jeopardy.”

“At that point, I did not feel I could accept the situation,” Dabbs said. “I said that if I stayed there, I would be jeopardizing patient care.

“I felt if I clocked in, I would be saying, ‘I can handle it.’ I didn’t feel I could do that.”

Dabbs, a divorced mother of four grown children, said she could not find work after she was fired. A respiratory nurse since 1976, she said she collected unemployment benefits.

“I tried for a long time to get work,” Dabbs said. “I had some people who didn’t even want to talk to me when I was fired.”

Dabbs now works for a clinic in Tustin.